Amid Fireworks at Senate Judiciary IANA Transition Hearing, No Shift in Debate

A Senate Judiciary Oversight Subcommittee hearing Wednesday delivered on widely anticipated fireworks over the planned Internet Assigned Numbers Authority transition (see 1609020038). The hearing failed to change perceptions that the simmering debate over whether to delay has shifted from a partisan fight, stakeholders told us. Congressional Republicans appear to be continuing to coalesce around a proposal to delay the transition via language in the short-term continuing resolution to fund the government once FY 2016 expires Sept. 30, while Democrats appear united in opposing it, lobbyists told us. Republicans have been working to finalize the CR language, which would extend a rider in the Department of Commerce's FY 2016 budget that bars NTIA from using its funding to execute the transition. Senate GOP leaders had hoped to pass the CR this week but the debate could spill into next week (see 1609130050).

Senate Judiciary Oversight Chairman Ted Cruz, R-Texas, led Republican criticism of the IANA oversight handoff during the hearing, pointing to what he considers unresolved issues with ICANN's changeover-related plans. Cruz focused his attention in part on concerns that spinning off NTIA oversight of the IANA functions would remove a guarantee that ICANN would preserve free speech rights online. Subcommittee ranking member Chris Coons, D-Del., strongly defended the transition, focusing questions on countering criticisms and highlighting the consequences of foot dragging. GOP lawmakers' concerns about the IANA transition are “misguided,” Coons said. The transition is an “essentially clerical process,” not “as some have suggested, the U.S. giving up ownership of the internet,” Coons said. “The U.S. does not own the internet.”

Cruz saved his strongest criticisms Wednesday for NTIA's preparations for the transition, saying the agency's actions flouted the handoff funding ban language and thereby violated several U.S. laws. Cruz put NTIA Administrator Larry Strickling and other agency officials “on notice,” saying he's sure President Barack Obama's administration won't “prosecute” them for violating the rider, but “a new administration will be in Washington” Jan. 20. It would be a "bold move" for NTIA to move ahead with the transition as planned after the hearing, but Strickling appears fully committed to proceeding, said Shane Tews, visiting fellow at American Enterprise Institute’s Center for Internet, Communications and Technology Policy.

Strickling told Cruz he was “outraged that you are accusing us” of violating federal law by preparing. “We have followed the law,” releasing an evaluation in June that cleared ICANN's transition-related plans (see 1606090067), and complying with Congress' call for a thorough review, Strickling said: “We have not relinquished our responsibility” for IANA oversight, which was the only action expressly barred by the rider. Cruz called Strickling's interpretation of the rider language “tortured.”

Strickling pledged to “follow your directions” if Congress passes a CR that includes an extension of the funding ban rider. NTIA has “taken steps” to prepare for a last-minute extension of its contract with ICANN to administer the IANA functions, including informing ICANN in August of the agency’s prerogative to extend the IANA contract by an additional year during the 15 days before the Sept. 30 expiration date (see 1608310030), Strickling said.

Cruz's concern about the transition's First Amendment implications “doesn't comport with the facts,” noting it doesn't involve regulation of content, Strickling said. The IANA functions "have nothing to with content or freedom of expression,” said ICANN CEO Göran Marby ​during the hearing. “We do not and cannot impact how sovereign states censor speech within their borders." Cruz said it's “remarkable and distressing” that Strickling would question his concerns about the transition's free speech implications, saying top tech firms that support the plan, including Facebook and Google, had a mixed record in protecting their own users' free speech rights.

Cruz said his free-speech concerns extend to the possibility of authoritarian nations increasing their influence within ICANN. “Imagine an internet run like many Middle Eastern countries that punish what they deem to be blasphemy,” Cruz said. “Or imagine an internet run like China or Russia that punish and incarcerate those who engage in political dissent.” Cruz noted former ICANN CEO Fadi Chehadé's relationship with the Chinese government-led World Internet Conference as evidence of an uncomfortably close partnership between ICANN and China.

Marby said China and other authoritarian countries don't support the transition, and a delay or cancellation could give such countries an opening to form an alternative to ICANN that would be outside of U.S. jurisdiction. U.S. "credibility as a power in terms of supporting the multistakeholder model will be shot” if the transition is delayed, Strickling said. A delay would be particularly damaging to U.S. credibility among the about 30 middle ground countries that the U.S. and other pro-multistakeholder countries have managed to bring to their side in the years since the contentious 2012 World Conference on International Telecommunications, Strickling said.

The Senate Judiciary Oversight hearing made clear that Senate Republicans are continuing to unify in seeking some degree of delay of the transition, as evidence by additional critical comments from Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, Senate Judiciary Antitrust Subcommittee Chairman Mike Lee, R-Utah, and Sen. Jeff Flake, R-Ariz., a communications sector lobbyist told us. Grassley said he remains concerned about the U.S. government's ability to retain control of the .gov and .mil top-level domains post-transition.

Pro-transition comments from Coons and Senate Judiciary Antitrust ranking member Amy Klobuchar, D-Minn., conversely indicate some degree of unified support for the handoff among Senate Democrats, the lobbyist said. What will matter now is how strongly Democrats in the House and Senate choose to oppose attaching the transition funding ban rider extension to the CR, along with whether the White House chooses to view the rider extension as a “poison pill,” the lobbyist said. Cruz's leadership on IANA transition opposition has made the debate a "partisan issue," Tews said.

It's up to the White House to determine whether the rider extension is a “poison pill,” but Senate Democratic leaders should “oppose it vigorously because continuing to move forward with this transition is in keeping with public commitments made with several [White House] administrations and several Congresses,” Coons told us. “My conclusion from today's hearing is that the transition has been thoroughly vetted” by the federal government and private sector stakeholders. Senate Commerce Committee ranking member Bill Nelson, D-Fla., said he would need to further examine the existing situation before assessing how strongly Senate Democrats should oppose the CR rider language.

“I cannot imagine” that the White House and congressional Democrats would oppose the CR rider language so strongly that they'd risk a government shutdown because of it, TechFreedom President Berin Szoka told us. “Ultimately, they're bluffing," Szoka said. "Delaying the transition by a year is not going to fundamentally change what happens. It may mean that the [Obama] administration doesn't get to take credit for it. It may piss off some people. But it's not going to materially change the end result.” Szoka told Senate Judiciary Oversight that he favors a staggered transition in which NTIA would retain an oversight role while changes to ICANN's accountability mechanisms go into effect and can be assessed ahead of full oversight spinoff.